The Court notes that it is important to first establish whether the legal provisions at stake pursue objectives relating to consumer protection so that they come within the scope of the Unfair Commercial Practices Directive. In that regard, the referring court had already ruled that these regulations indeed are intended to protect consumers.
Subsequently, the European Court investigates whether sales at a loss should be considered as commercial practices, hence fall under the scope of the Directive 2005/29. The Court holds that the practice of selling at a loss serves the purpose of attracting consumers to the business premises of a trader and encouraging them to make purchases. It therefore, so the Court holds, clearly forms part of an operator’s commercial strategy and relates directly to its promotion and sales development. It follows that it constitutes a commercial practice within the meaning of the Directive.
Following these observations, the Court decides on whether this automatic prohibition under Belgian law is compatible with the Directive's provisions. As it has ruled in several other decisions, the Court again stresses that since the Directive fully harmonizes the rules relating to commercial practices, Member States may not adopt stricter rules than those provided for in the Directive. Moreover, the Directive establishes in its Annex I an exhaustive list of 31 commercial practices which are regarded as unfair "in all circumstances". Consequently, only those commercial practices can be deemed to be unfair without a case-by-case assessment against the provisions of the Directive. As the national provisions at issue do not appear in Annex I to the Directive, they cannot be prohibited in all circumstances, but can be prohibited only following a specific assessment allowing the unfairness of those practices to be established.
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